United States
Civil discovery tools are similar across federal and state courts in the United States. Discovery is broad in scope and designed to allow parties to a lawsuit to obtain virtually all of the information related to any claim or defense in the litigation from each other and third parties. It is not necessary that the requested information be admissible at trial (though there are limited exceptions for certain privileged information, such as communications between a party and its attorney, and requests that are deemed unduly burdensome). As a result, the scope of discovery is significantly broader than the scope of evidence that may ultimately be presented at trial. The court is not typically involved in the discovery process but may be asked to resolve a discovery dispute between the parties.
Discovery typically consists of a combination of the following
- Initial disclosures: Parties are usually required to exchange certain fundamental information early in the case without a request from the other side. Such disclosures include a list of key witnesses, relevant documents, damage calculations, and identification of any insurance available to cover any part of a party’s liability;
- Requests for production: Parties may serve requests for production of another party’s documents, records, emails, electronically stored information (referred to as “ESI”), and other data related to the case. This is often a costly process in complex litigation, particularly when there are a large number of electronic documents, in part because the producing party and the requesting party each generally seek to review all of the documents at issue;
- Requests for inspection: If particular premises in one party’s control are relevant to the case, any other party may request to inspect those premises. For example, such requests might be used to obtain access to a manufacturing plant where an allegedly defective product was manufactured;
- Interrogatories: Parties may serve written questions, to which the other party is required to provide written responses verified under oath;
- Physical and mental examinations: If a party claims a physical or mental injury as the basis for a claim, other parties may request that the individual submits to examination by an independently retained physician or another medical practitioner;
- Requests for admission: Parties may serve requests asking another party to admit certain specified facts contained in the request;
- Expert reports: A party may retain an expert witness—a person who has specialized knowledge of a particular field and who can use this expertise to help the judge or jury understand complex issues (for example, the science underlying a medical procedure or the appropriate definition of a product market). If a party retains an expert witness, that witness must prepare a report summarizing the expert’s opinions and conclusions, which must be provided to all other parties;
- Depositions on written questions: An individual may be placed under oath outside the presence of a judge for the purpose of responding orally to written questions prepared by one of the parties; and
- Depositions on oral examination: An individual may be placed under oath outside the presence of a judge for the purpose of responding to questions posed by an adversary’s attorney. Most attorneys prefer depositions on oral examination to those on written questions, as the latter do not provide the ability for counsel to ask follow-up questions of a witness and do give a witness time to reflect and revise what might otherwise be more candid testimony. Depositions may be taken of witnesses of fact and, in many jurisdictions, of expert witnesses. Corporate parties can be compelled to produce a designated individual with authority to respond to questions on the corporation’s behalf.
Discovery may also be obtained from third parties. However, such discovery is typically limited to production of documents, inspection of premises, and depositions, and to information that cannot be obtained from any of the parties to the litigation.
As noted above, discovery in the United States is often very broad. Nevertheless, any party may seek entry of a protective order to limit the scope of discovery to ensure that it remains proportionate to the complexity and significance of the case, or to preclude discovery that would impose an undue burden on the party or violate some privilege recognized by the law.